Romero v. Sims
| Decision Date | 13 November 1953 |
| Docket Number | No. 3720,3720 |
| Parties | ROMERO v. SIMS. |
| Court | Court of Appeal of Louisiana — District of US |
Blanchard & Blanchard, Donaldsonville, for appellant.
Blum & Marchand, Donaldsonville, for appellee.
This suit is for damages for personal injuries suffered by Mattie Romero on July 26, 1945, when plaintiff fell and suffered fractures of the arms and bruises and abrasions about the face and head. The cause of action is predicated on the liability of the defendant, lessor, to plaintiff, lessee, for not maintaining the leased premises in a habitable state of repair, knowing that the premises were unsafe and the steps to the house were in such condition that when plaintiff went to attend to her chickens on a rainy night the middle or center step broke and she was precipitated to the ground, causing injuries complained of.
The suit was filed on August 10, 1945. Defendant answered on October 3, 1945 by general denial and urged special defenses contending that the plaintiff, under the terms of a verbal lease, agreed to maintain and repair the premises and that there was no liability on the part of defendant because plaintiff had assumed the obligation of maintaining the leased premises. The further defense of negligence on the part of plaintiff was urged in that she knew the condition of the steps and the night was dark and it was raining and the place was not illuminated, and plaintiff's vision was bad. Plaintiff filed a supplemental and amended petition on October 8, 1945, claiming additional medical expenses and damages. The original suit was for $5,050 and by the amendment the plaintiff claimed an additional $2,500 damages and $45.50 medical expenses and $23.50 for eye glasses.
The case was tried on November 23, 1945, and at the conclusion of the testimony it was agreed that after the testimony was transcribed the case would be submitted on briefs. The evidence was filed on February 1, 1949.
After the trial of the case, but before the evidence was transcribed and filed, and we assume before the case was submitted to the District Court for decision, Mattie Romero died during the month of July, 1948. The exact date of her death is not reflected by the record.
The present plaintiffs, Leslie C. Morris, Oliver F. Millien, Marie Morris Vaughan, Nellie Morris Romero and Una Millien McKee, on January 12, 1950, filed a petition alleging that they were her children and heirs and that she died intestate during the month of July, 1948, while visiting in Monroe, Louisiana; that her succession was not opened, but that they accepted the succession of their deceased mother and asked that they be made her representatives and substituted as the plaintiff in her place and stead, and authorized to prosecute this suit, and to stand in judgment; they prayed that the defendant be served with a copy of the petition and that after due proceedings had, there be judgment in their favor and against the defendant in the sum and for the costs prayed for in the original petition. This amended petition by the present plaintiffs was served on the defendant on January 13, 1950. No answer was made by the defendant to this supplemental and amended petition of the present plaintiffs.
The minutes contained in the record do not show when the record was submitted to the Court for decision, but we find in the record a letter dated April 27, 1950, from plaintiff's attorney addressed to the Clerk of Court, in which it is stated that the case had been under advisement by the Court since May, 1948, in which plaintiff's attorney complains of the delay.
The Lower Court rendered judgment on May 2, 1950, rejecting the plaintiff's demands at their cost, holding that plaintiff was notified to leave the premises and that, failing to do so, she was classified as a trespasser and held that the negligence of the plaintiff caused the accident and rejected the demands of her children at their cost. Thereupon, the present plaintiffs filed a motion for a new trial or rehearing on May 4, 1950. Subsequent to the rendition of the judgment, the defendant, Kline Sims, died, and on May 20, 1953, Alice Sims Hanson, universal legatee of C. Kline Sims, and E. Kettredge Sims, brother of C. Kline Sims, filed a motion to dismiss the application of the plaintiffs for a new trial and/or rehearing, in which it is alleged that the plaintiff, Mattie Romero, died in July, 1948, and that more than one year had elapsed before her children, the present ...
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